Can I leave someone out of my Will?

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Family provision is a growing area of law and high profile estate disputes are increasingly being reported in mainstream media.

There are many reasons why you may not want another person to receive anything from your estate when you die including: estrangement; dislike of a person; feeling that that person has already received their fair share; or a view that another beneficiary has a greater need for your assets.

The default position is that you are free to make a Will dealing with their estate in whatever way you choose. However, the Family Provision Act 1969 (ACT) and the Succession Act 2006 (NSW) allow the Court to intervene to change you Will if you did not provide adequately for a particular person who you had a moral duty to provide for.

There are plenty of misconceptions about when a Will can be challenged. Common myths include:

  • Myth #1 – Any of my acquaintances can make a claim against my estate

Not just anyone can claim against your estate. Only persons who are ‘eligible applicants’ are able to commence a family provision claim. While spouses and children are eligible applicants, the other categories of eligible applicants vary between States and Territories and may include people who have lived with you or been financially dependent on you.

  • Myth # 2 – Leaving a small gift in the Will is enough to preclude a claim

In deciding whether to make an order for provision out of an estate, the Court must decide whether you left adequate provision for the applicant’s maintenance, education and advancement in life. The Court can consider a range of factors including the size of the estate, history of the relationship and the financial needs of the applicant.

Leaving a small gift in the Will is not effective for stopping that beneficiary from commencing a family provision claim seeking more from your estate.

  • Myth #3 – There is no point making a Will if someone can make a family provision claim anyway

Courts are not the business of rewriting Wills. While the Court may make an order in favour of a person to whom you had a duty to provide, the Court limits such provision to what is adequate in the circumstances.  If you do not make a Will, the rules of intestacy will determine how your estate is divided and there is a high chance that this distribution will not reflect your wishes.

If you are concerned about the possibility of someone challenging your Will, it is wise to see legal advice. While family provision claims cannot always be avoided, it may be possible to structure your affairs in such a way to reduce the risk of a future claim against your estate.

Rebecca Tetlow is an Accredited Specialist in Wills and Estate Law (NSW) and a Senior Associate at Dobinson Davey Clifford Simpson, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.

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